Thursday, October 1, 2015

When Omission Matters: Diverse Perspectives on the Legal History of the Administrative State

Last
week we noted Mike Konczal's recent essay, "Hail to the Pencil Pusher,"
which appeared in the Boston Review. Konczal, a
fellow at the Roosevelt Institute, admirably synthesizes
academic work by Bill Novak, Jerry Mashaw, Dan Ernst, Anuj Desai, Jeremy
Kessler, William Eskridge, Jr., John Ferejohn, and Sophia Lee to
demonstrate "American bureaucracy's long and useful history." Konczal also explains clearly and concisely why
this research ought to matter to the general public. Most notably, in his view, it challenges an alternative history, popular among some contemporary conservatives, in which American bureaucracy is a recent and generally harmful invention.

I was delighted to see someone
outside of academia place a spotlight on some of our field's most exciting work. I
could say many more good things, both about the essay and the research
that informed it. (Read it! All of it!) Instead -- and without appearing ungrateful, I hope -- I am going to use
Konczal’s essay to provoke some conversations that I think legal
historians should be having. Specifically, I want to talk about
omission and gender. Of the authors discussed, only one (Lee) is a
woman. Does that matter? If so, why? Review essays needn't be comprehensive, of course, especially in this type of venue, but as I explain after the jump, I think we would do well to at least reflect on gender disparities when we spot them.
To lay some groundwork here,
there is no shortage of women writing in this field. Anytime I see
“history” and “bureaucracy” in the same sentence, Joanna Grisinger’s
important book, The Unwieldy American State (2014), comes to mind.
So, too, does Anne Kornhauser’s recent book on twentieth-century
liberals’ deep and unresolved anxieties about the administrative state
(Debating the American State (2015)). If we're going
back to 1996, when Novak's pathbreaking The People's Welfare came out,
we might also consider equally pathbreaking work by Lucy Salyer (Laws
Harsh as Tigers (1995)), the late Peggy Pascoe (What Comes Naturally (2009),
especially the chapter titled “Seeing Like a Racial State”), Kristin
Collins (“Administering Marriage” (2009)), Risa Goluboff (The Lost
Promise of Civil Rights (2010), especially the parts on Department of
Justice lawyers), and Margot Canaday (The Straight State (2011). And,
OK, yes, I have also labored in these trenches (although for nowhere near
as long as some of the authors I’ve just listed). The point is: these scholars –
all women – have given concrete historical content to the idea of
government by and through agencies.*

There are probably many reasons why Konczal did not discuss the work I’ve mentioned -- one being that an essay of this nature simply can't include everything -- but there is one possibility that deserves discussion:
When writers like Konczal do us the great service of translating our
research for wider audiences and broadcasting our findings, do they
perhaps unintentionally perpetuate one of academia's most insidious problems? That problem, of course, is the disparate rates at which women authors are cited (and cite themselves)
relative to men. (NB: some evidence suggests a different trend in legal scholarship.)
Kelly J. Baker, a columnist for Chronicle Vitae, summarizes one study
this way:

After controlling for factors including venue,
methodology, subject, the author’s institution, and the significance of
the publication, Walter and her colleagues discovered that gender
mattered even when all other factors were held constant. In fact, gender
was one of the best predictors of whether an article would be cited or
not. Walter writes that women authors received “0.7 cites for every 1
cite that a male author would receive.” Untenured women were the least
likely to be cited.

(The gender pay gap is almost exactly the same size, interestingly: Full-time working women earn 78 cents to their male counterparts' dollar, according to the latest government release on this issue.)

Lest I appear to be pointing
fingers, I can report that on one occasion, a reader of this blog asked me,
personally, to be more thoughtful in this regard. (In rounding up work
on historians and the Obergefell decision, I had mentioned the majority
opinion's citation to Dirk Hartog's work but not to the important work
of two women historians, Nancy Cott and Stephanie Coontz.) I was mortified - and chastened. We at the
Legal History Blog tend to think of ourselves as mere conduits of
information, but we do make choices, and those choices should not go
unexamined.

When we become more attuned to this citation dynamic,
what happens? I took a minute to ponder what Konczal’s essay would have
looked like had he included some of the authors I mentioned. As it stands, here's the main takeaway: "This scholarship does more than just show how far back the
administrative state goes in American history," Konczal writes. It also
undermines the idea, popular among present-day conservatives, that
bureaucracy necessarily threatens freedom. "[T]he practices and
institutions of bureaucrats have not assaulted our Constitutional
liberties," Konczal summarizes, "but rather have helped define and
expand our very notion of liberty." It's hard to overstate the importance of this point. Absent from the essay, however, is much engagement with race, class, gender, and other
categories of difference. This is ironic. In 2010, when Sophia Lee broke
open the field of "administrative constitutionalism," it was with an
article titled "Race, Sex, and Rulemaking." A
version of Konczal’s essay that incorporated the authors I’ve noted
would necessarily include the experiences of women, African Americans,
American Indians, non-white immigrants, homosexuals, and the poor. When
such actors enter the picture, I suspect, his conclusions about the
liberating nature of administrative governance would have to become more
nuanced. As I have written elsewhere, “the modern American state
wielded and consolidated power through regulation, and it regulated
unequally.” If
administrative agencies were in some contexts anxious to preserve and
expand individual liberty, in other contexts they pioneered technologies
of constraint, surveillance, and exclusion.

Does recognizing
this more complicated history give fodder to today’s anti-government
conservatives, the implied target of Konczal’s essay? Perhaps. But not
recognizing this history may be more dangerous, for it ignores the
government’s complicity in creating present-day inequalities and may
thereby undermine calls for the kind of government that deserves Americans' support.

I'll end my musings here -- with an invitation to readers to
chime in, and with a promise to develop my own thoughts further. I was
recently invited to contribute to a collection on administrative
constitutionalism (edited by Columbia Law School's Jeremy Kessler and
Gillian Metzger), and I think I have my topic!

*This list is not
meant to be exhaustive, but I would love to craft a list that is, and to include scholarship on this topic by both men and women. Contact me via email, twitter, or the comments section (below) if you have
ideas.

7 comments:

Wonderful work, Karen. I do think that you are correct that telling this complicated story of administration allows us to understand the construction of systemic inequalities and other social and cultural problems that remain potent even today. But this same logic suggests the importance of looking at the "early" period of statecraft in American history (and of course beyond). My own work tries to uncover the degree to which the capitalist marketplace facilitated and complicated administrative development. Work by David Ericson, Ryan Quintana, and George Van Cleve get at the role that slavery played in state and federal governance. There are many other examples to look at regarding statecraft in the Civil War and Reconstruction Eras. So not so much a correction as an addition to your broader point. Thanks again for a great post.

Thanks, Gautham - for the comment and the reading suggestions! And FWIW, I definitely did not mean to imply that only women are writing about immigrants, people of color, the poor, and other historical outsiders.

Karen, thank you so much for this thoughtful response. I'm definitely going to check out all the authors and books listed and think through the criticism. A few thoughts.

- So much of the interesting research being done, particularly the ones you've mentioned, are after the New Deal, and I wanted the core of the essay, the historical part, to end with the New Deal. (As Ernst's book essentially does.) This is part to put the argument as a response to conservatives who see the problems of the administrative state not as an anxiety over the APA and post-New Deal era, but instead as a progressive-era and alien, ideological problem. It's tough to go just a bit beyond that without having to add a lot of words, which I was capped on for print.

From there I could fit in how to quickly address the liberty aspect and then the way it'll change the way historical research and knowledge is done in the post-war period. At that point I ran out of space (and alas, time too).

- "the experiences of women, African Americans, American Indians, non-white immigrants, homosexuals, and the poor. When such actors enter the picture, I suspect, his conclusions about the liberating nature of administrative governance would have to become more nuanced"

Yes. This is really important, and a problem for the essay. We tried to make the ending engage this by invoking the problems of the NSA, ICE, SEC, etc., which readers will get (and be worried about) even if they don't follow the more complex interactions of the administrative state. But it's tough to talk about the administrative state in this capacity without sounding celebratory.

As you note, grounding those problems in specific research and examples would have made it much clearer, and when I revisit this material I'll make sure to do that. (Margot Canaday's book in particular, has been highly recommended by friends as well, and it's moving to the top of my list now.)

- I realize that a name drop for Gillian Metzger got lost in the shuffle. I feel really bad about this, as I really wanted to cite her work alongside Eskridge/Ferejohn.

- Aside: as a result of researching this project, Amazon's front page is really insistent that I buy Philip Hamburger's "Is Administrative Law Unlawful?"

Thanks so much for taking the time to read and reply, Mike! I hope that none of what I wrote overshadows my main feeling about your piece, which is GRATITUDE for giving this important scholarship a much wider audience and elucidating the connections to our current political moment. I'll be looking out for your work from now on.